The Worst Amendments to the Constitution

Examining how the Constitution was killed, with suggested surgery after the autopsy.

Atlanta, GA

May 1, 2023

“US Constitution either permits the government we’ve had or has been unable to prevent it. Either way, it’s unfit to exist.”

_ Lysander Spooner

Today we mourn a paper tiger.

Aside from administrative niceties like biennial elections, a fixed inauguration date, and two senators per state, the US Constitution is a dead letter. 

To the extent it’s followed at all, like a wayward spouse tailed by a private investigator, it’s only to affirm its worst attributes.

At least since Lincoln, with few exceptions that prove the rule, the venerable compact has been overtly abused or routinely ignored. 

Till Roosevelt (both of them), most politicians at least paid lip service to the Constitution’s preservation and protection. But since the New Deal and Great Society, and especially after the turn of this century, few “public servants” could care less.

Most no longer even pretend to honor the oath they took. And no one holds them to it. It’s nice we’ve had a few impeachments. But they were mostly sideshows and stunts. None were for the real crimes in which most accusers would’ve been at least as complicit.

Like humidity in Houston, such malfeasance has become so ubiquitous its hardly noticed. Wars are wantonly waged, the currency continually counterfeited, and restrictions arbitrarily imposed without even a cursory consideration of constitutional constraints. 

The Constitution has been officially edited twenty-seven times.

We’ve not had a new amendment in three decades, and the last one added was written before the first was adopted. Between them, some alterations were improvements and a few were inconsequential. But like burrowing barnacles on a rotting hull, many malignant accretions should be scraped away. 

Most of the banalities are relatively recent, like when presidents are inaugurated and how long they can “serve”. The date the term starts and how many can be fulfilled are increasingly irrelevant when every executive is essentially the same. 

And our elected props are mostly ornamental anyway. The real power comes from unseen sockets. Party politics are essentially a distraction to corral popular currents into parallel circuits. But the wires are rigged so all power flows one way: from the outside in.

As the last few years regrettably illuminated, most Americans seem more than willing to let the lights go out. The Ninth and Tenth Amendments (what Jefferson called the cornerstone of the Constitution) are treated as quaint “truisms” if they’re acknowledged at all. 

Sitting presidents, members of Congress, and the media, military, and medical arms of the corporatist State unapologetically advocate restraining the First Amendment, repealing the Second, and acting as if the Fourth, Fifth, Seventh, and Eighth hardly exist. Almost all of them would prefer they didn’t, so they just act as if they don’t.

They clip their weak constitutional chains by claiming certain rights aren’t “absolute.” But being absolute is inherent in a right. If it isn’t absolute, it isn’t a right. Nor is anything a right (like such made-up “rights” to healthcare, education, or housing) that requires compulsion to be realized.

Rights aren’t privileges. They’re natural, and innate. Government can’t grant them; it’s supposed protect them. But survival instinct usually impels it to strip them away.

It’s common knowledge that (and commonly cheered when) the State detains innocent people, confiscates private property, surveilles private communication, inflicts torture, and delays or forgoes trials in clear violation of constitutional prohibitions. It’s hardly hidden. The assailants have no shame (the characteristic of conscience that first recedes when a culture crumbles).

In fairness, this is likely because they understand their victims. To the extent Americans care about blatant encroachment on basic liberties, most are probably for it. Too many of them certainly are. Otherwise, we wouldn’t be here.

Whether proposed legislation or (more likely) executive decrees are legally allowed is a question rarely raised. And if it is, the person asking is deemed an “extremist” wingnut warranting a dismissive wave or a condescending sneer.

The Constitution died when it became a “living document.” It was killed by unscrupulous undertakers for whom silent homicide was good for business.

As morticians embalmed the body with “broad construction”, they claimed the old corpse couldn’t fit a modern coffin. All they can do is drive more nails. And the Fourteenth Amendment is the biggest hammer.

Not that others aren’t awful. The 16^th and 17^th Amendments are abhorrent for obvious reasons, and should both be repealed. Yet there’s little doubt what they were meant to do.

Each intended to centralize power and extract wealth. And that’s exactly what they’ve done. But whereas those amendments were sledgehammers, the 14^th was a chisel…meant to mold rather than demolish.

It later became a pick axe, and then a Swiss Army knife. There’s now almost nothing it can’t be made to do.

The adoption process itself was fishy. Three Northern states reeled back their ratification, and only two agreed to return it. Radical Republicans imposed acceptance on Southern states as condition to “re-enter” a Union they’d plainly wanted to leave, and that the amendment’s proponents insisted they’d never left.

But its ambiguity and malleability are what make the 14th Amendment so sinister. It’s Pandora’s Box filled with cans of worms. Once pried opened by the crooked crowbars of 20^th century Courts, it in essence became the entire Constitution…the pliable cast into which we’re all poured like clay.

Its primary purpose was to make constitutional the Civil Rights Act of 1866, which passed with an override of President Johnson’s veto. Its admirable aims were to repeal the Dred Scott decision that had denied citizenship to American blacks, and to apply the Due Process, Equal Protection, and Privileges and Immunities clauses to protect their basic rights.

From inception, the 14^th Amendment raised questions…which the Supreme Court quickly answered. The Slaughter-House Cases (1873) and Plessy v Ferguson were within a few years and decades, respectively, of ratification. In both, the Court…whose members were alive when the Amendment was adopted and were well aware what it meant… adhered to what its framers intended.

Even as late as the Brown decision sixty years later, few on the Court thought the Amendment permitted what they wanted to do. Forced segregation may have been insidious. But it wasn’t unconstitutional.

In considering that case, Justice Frankfurter admitted as much. But he relied on the Amendment’s vagaries to recruit “changes in men’s feelings” as rationale for unleashing the Court. The rest of his colleagues agreed and, as Justice Robert Jackson put it, made “a judicial decision out of a political conclusion.”

By the ahistorical “incorporation” doctrine, the 14^th Amendment has been repeatedly and increasingly misappropriated by clever lawyers as a lever to insert interventionist interpretations its authors never intended. It’s since become a weapon federal judges wield to wipe out state laws (prayer, abortion, voting, you name it) they don’t like.

An argument can be made that every amendment after the Thirteenth should be repealed. We won’t go that far. If presidents prefer to be inaugurated in January, that’s fine. I also have no problem with limiting them to two terms, or with an election intervening before a congressional pay increase takes effect.

Whatever.

But the rest can go. To the extent they were ever needed, they aren’t now. Most modern amendments attempted to “expand democracy”, which almost always makes things worse.

The Constitution never denied women the vote, and no state would dare rescind it now. Some might block the ballot to eighteen-year-olds, but so what? Have we taken a good gander at the average 18-year-old? And remember (to paraphrase George Carlin), half of them are dumber than that!

The rationale for the 26^th Amendment was that anyone who fights in wars should be able to vote. Fine. But the answer to that is to stop the wars, not to expand the franchise.

As to the 24th Amendment, every voter should have skin in the game. Regardless whether a poll tax should be prohibited, property ownership or proof of tax payments should be required. Anyone using a plebiscite to pick other people’s pockets should bring something to the party he’d prefer not be pilfered.

Likewise, the provision of DC electors. Only the states should select the president. They formed the compact, they make the choice. Allotting electors to DC as “if it were a state” is like urging men to wear dresses as if they were women, or allowing girls to be “altar servers” as tho’ they could be priests.

The Constitution was ostensibly crafted to limit government and protect our rights. But that’s not quite true. It was initially established to strengthen the center while limiting its reach. Amending the Articles would’ve been a more useful mechanism. In hindsight, it would’ve been a preferable one.

But even the most ardent Federalists would be horrified by what their government has become. Long ago, their guard dog escaped its leash and attacked its owner. Its since made a habit of mauling everyone else.

Like an elegant edifice ravaged by an interior fire, the US Constitution is a hollow shell. The exterior architecture is superficially similar to what was initially erected. But it’s a Potemkin parchment, shielding smoldering ashes left by an array of arsonists.

We only hope not to be asphyxiated by the smoke.

JD